State v. Maxwell

• Decision Date: 18 September 1973
• Docket Number: No. 34802,34802
• Citation: 502 S.W.2d 382
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Thomas Russell MAXWELL, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 382

502 S.W.2d 382

STATE of Missouri, Plaintiff-Respondent, v. Thomas Russell MAXWELL, Defendant-Appellant.

No. 34802.

Missouri Court of Appeals, St. Louis District, Division Two.

Sept. 18, 1973.

Motion for Rehearing or Transfer Denied Nov. 13, 1973.

Application to Transfer Denied Jan. 14, 1974.

David Uthoff, Asst. Pub. Defender, Thadeus F. Niemira, William R. Kirby, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Jefferson City, G. Michael O'Neal, Asst. Atty. Gen., J. Brendan Ryan, Circuit Atty., James J. Barta, Nels C. Moss, Jr., William M. Frain, Jr., Frederick Dana, Asst. Circuit Attys., St. Louis, for plaintiff-respondent.

KELLY, Judge.

Thomas Russell Maxwell was charged by an amended information with Robbery First Degree by means of a dangerous and deadly weapon. In addition to the charge for which he was on trial the amended information alleged that he had previously been convicted of a felony, to-wit, Stealing from a person. Section 556.280 R.S.Mo. 1969, V.A.M.R. ¹ Trial was had by a jury, and the only issue submitted to the jury was whether he was guilty or innocent of the charge of Robbery in the First Degree by means of a dangerous and deadly weapon, the appellant having stipulated as to the alleged prior conviction and the trial judge made the required finding thereon.

Appellant was charged in the amended information along with two others, Lawrence James Watson and Ronald R. Massey. The charge was that the appellant, Watson and Massey, by means of a dangerous and deadly weapon, to-wit, a knife, on the 26th day of May, 1971, did rob Wilford Woodard of $4.00, one men's wallet of the value of $3.00, and three car keys of the value of $0.75.

Prior to trial appellant's counsel filed a motion to suppress evidence taken from appellant and also a motion to suppress evidence relative to a confrontation of the victim of the crime with the appellant and his two co-defendants a short time after the alleged robbery under circumstances he contends were unduly suggestive so as to taint the victim's in-court identification. After an evidentiary hearing each of these motions to suppress were overruled.

On appeal, the following points are presented for review:

1. the State failed to sustain its burden of proof that the appellant was guilty of the charge in that (a) the trial court erred in failing to sustain his motions to suppress evidence, (b) the trial court erred in admitting into evidence the in-court identification of the defendant in that it was based upon 'tainted' suggestive evidence and circumstances violative of appellant's constitutional rights, and (c) the victim's identification was against physical facts and self-destructive;

2. the trial court erred in giving and reading to the jury Instruction No. 3, the burden of proof instruction;

3. the trial court committed prejudicial error in admitting into evidence testimony of Officer Schulze relative to an extra-judicial consistent statement made by the victim on the night of the occurrence; and

4. the punishment assessed by the trial court, to-wit, 20 years, is so severe and unconscionable as to constitute cruel and unusual punishment and to demonstrate bias and prejudice of the trial court.

Appellant's 'Motion to Suppress Evidence' was directed against the evidence seized from the appellant at 1261 St. Ange Court, to-wit, a knife; it is his contention that the arrest of the appellant was unlawful and not based upon 'probable cause' and therefore the search and seizure was illegal. His Motion to Suppress the evidence of an 'impromptu lineup' conducted by the police at 1261 St. Ange Court was based upon unspecified rights under the 4th and 14th Amendments to the United States Constitution, his privilege against self-incrimination, and his right to counsel as guaranteed by the 5th, 6th and 14th Amendments to the United States Constitution. Prior to trial evidentiary hearings were conducted on two separate occasions, one for each motion, by two different judges.

With reference to the Motion to Suppress evidence seized as a result of the search at the time of appellant's arrest, the arresting officers had received a radio transmission at approximately 12:22 a.m., May 26, 1971, that 'three Negro male subjects' were wanted for a robbery at 1037 Park Avenue and that they had made their escape in the victim's 'tan 1962 Buick.' The officers drove to 14th and Morrison Streets where they observed a tan 1962 Buick sitting in a parking lot and occupied by three Negro males, all sitting in the front seat. The officers continued observing this tan 1962 Buick and its occupants for 'a few moments' when two of the occupants thereof exited from the driver's side of the car and the third from the passenger side of the car. The one who got out of the passenger's side of the car walked east across the parking lot a few feet and at that time the officers pulled their vehicle up behind the Buick, alighted and approached the men. One of these officers, Officer Seale, arrested the man identified as Watson who had walked to the east from the passenger side of the parked Buick auto. As Seale approached Watson, Seale observed that Watson stooped down and tossed something into the bushes nearby. After advising Watson that he was under arrest, Officer Seale searched the bushes where he found a brown man's wallet. He immediately searched Watson's person and found in the lower left front coat pocket a Shoppers' Credit Card with the name of Mr. Woodard on it. The arrest was made at about 12:45 a.m. It was admitted that prior to the arrest the description broadcast over the radio did not include a license number, what the three 'Negro Male suspects' were wearing, a description of their age, their height nor whether the Buick was a two or four door car. Officer Cramer who did not testify at the hearing on the motion to suppress the evidence, placed appellant under arrest and found a Sabre brand knife of his person. Both Watson and appellant had been placed under arrest suspected of this robbery prior to their search, although neither officer had an arrest warrant nor a search warrant at the time.

Appellant was, at that time, represented by counsel other than trial counsel, and in deciding whether the judge who heard the evidence with respect to this motion correctly decided the legal principled at issue we must look to the quantum of evidence produced at that time, much of which is hearsay brought into the record by appellant's counsel at the time of the evidentiary hearing. According to Officer Seale, appellant was arrested at the driver's side of the 1962 tan Buick and was searched there by Officer Cramer. Appellant was arrested 'Suspicion of Robbery' and Officer Cramer found a Sabre brand pocket knife with a four inch blade on appellant. With the record in this condition the judge hearing the motion overruled it.

Reduced to its simplest form, the real issue is whether the police officers had reasonable cause to place appellant and the other two 'Negro males' under arrest without a warrant. The answer to this question hinges on whether they had probable cause to make the arrest, for if they did, then the search was incidental to a lawful arrest and would not be improper. Probable cause consists of the facts available to officers at the moment of the arrest, and whether at that time such facts would warrant a man of reasonable caution in believing that an offense had been committed, and whether at that time the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man into believing that the movant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 LEd.2d 142 (1964).

It is the movant who has the burden of presenting evidence to sustain his contentions that the search and seizure was unlawful. State v. Caffey, 457 S.W.2d 657, 659(3) (Mo.1970); State v. Fields, 442 S.W.2d 30, 33(3) (Mo.1969); State v. Holt, 415 S.W.2d 761, 765(2) (Mo.1967). While it is basic that an arrest without a warrant must stand upon firmer ground than mere suspicion, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the existence of probable cause justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. 'It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.' 5 Am.Jur.2d, Arrest, § 48, p. 740, Beck v. Ohio, supra, State v. Martin, 465 S.W.2d 594, 596(1) (Mo.1971). State v. Harris, 477 S.W.2d 42 (Mo.1972) held that an arrest was supported by probable cause where the fact that an unfamiliar tan station wagon had been seen parked in a driveway of burglarized premises, that guns were discovered to have been taken from the burglarized premises, and information that the car was thought to be proceeding east on Route 66 possibly in St. Louis County was broadcast over the police radio, was heard by a State Trooper who saw what he believed to be a tan 1962 Plymouth station wagon going north on Highway 244 and who then pursued it and overtook it when it had a flat tire and was forced to pull off onto the shoulder of the highway. The Trooper then ordered the three occupants of the station wagon out of the car and placed them under arrest. While looking into the windows of the station wagon he observed therein what appeared to be guns covered by a bedspread. The station wagon was taken to Troop C Headquarters and 12 guns, a bedspread and a blanket were taken from the station wagon. The Court, l.c. 46(5), said:

'Without restatement, the facts above detailed, leading to the apprehension of appellant, clearly provided reasonable cause for his arrest and for the search of the vehicle in which he was travelling.'

Also see State v. Ward, ...